JUDGMENT : The present appeal is directed against the judgment and order of conviction passed by learned Additional Sessions Judge, Chandrapur in S.T. No. 163/1996, by which the learned Judge of the Court below convicted the appellant for the offence punishable under Sections 498A and 306 of the Indian Penal Code. In respect of conviction under Section 498-A of Indian Penal Code, the appellant was directed to suffer R.I. for 1 year and 6 months and was directed to pay fine of Rs. 1000/- and in default of payment of fine to suffer R.I. for 6 months. So far as, his conviction under Section 306 of the Indian Penal Code is concerned appellant was directed to suffer R.I. for 3 years and to pay fine of Rs. 2000/- and in default of payment of fine he was ordered to suffer further R.I. for one year. 2. The prosecution case as it is unfolded during the course of trial, is as under: Ashok Govindrao Kshirsagar (PW3) on 16/4/1996 was attached to P.S. Ramnagar at Chandrapur as a police constable. His duty hours were from 8.00 p.m. of 16/4/1996 to 8.00 a.m. of 17/4/1996. While he was discharging his duty at about 2.30 a.m. he received a message from Police Control Room informing him that fire has erupted at Sindhi Colony, Ramnagar. A direction was given to him to visit spot alongwith duty officer. Accordingly duty officer Shri Sheikh, this prosecution witness and other police staff reached to the spot. During the course of their travel from police station to Sindhi Colony, Ramnagar the factum of fire was informed to Fire Brigade and also to police sub-inspector. When this staff reached to the spot they noticed that fire brigade was already reached there and steps were being taken to extinguish fire. The fire broke in the house of present appellant and first upper floor of the house was engulfed with such fire. Fire Brigade extinguished the fire. The door of the room was chained from inside. It was broken up. When P.C. Ashok (PW3) alongwith other police staff entered the room they found dead body of woman in complete charred condition and was lying along side the cot. The dead body was identified as dead body of wife of appellant and she was identified as “Harsha”. 3. Gopal Hemchandra Rupani (PW1), the brother of deceased Harsha reached to police station. When P.C. Ashok (PW3) alongwith other police staff entered the room they found dead body of woman in complete charred condition and was lying along side the cot. The dead body was identified as dead body of wife of appellant and she was identified as “Harsha”. 3. Gopal Hemchandra Rupani (PW1), the brother of deceased Harsha reached to police station. That time Mohd. Hanif Sk. Shabbir (PW9) was Police Sub-Inspector of P.S. Ramnagar. Gopal (PW1) lodged his report (Exh.24). The gist of the FIR lodged by first informant Gopal (PW1) is as under: His sister whose maiden name was Maya Rupani was married on 01/04/1994 with applicant. After 34 months of her marriage appellant and his mother started causing illtreatment to her in respect of dowry. She was beaten, she was abused by her mother in law and the appellant. That because of the beatings at the hands of the appellant and the mental harassment on the part of her mother in law his deceased sister was suffering from tremendous mental stress causing blood omitting. Though the treatment was given to her by appellant, there was no improvement. Resultantly, she was taken to K.E.M. Hospital, Mumbai. No person from the appellant side came to Mumbai. Thereafter first informant (PW1) and his sister came to Khamgaon, the parental city of deceased Harsha. On 29/2/1995 his other brother in law alognwith his sister dropped Harsha to her matrimonial house at Chandrapur. The F.I.R. further recites that thereafter again ill-treatment started causing again blood omitting. The fact of blood omitting was informed by the appellant therefore, first informant came to Chandrapur and took his sister to Khamgaon where she was administered some Ayurvedic medicines with treatment. That treatment was continued about 2 and ½ months at Khamgaon. Thereafter, as per request made by deceased she was taken to Chandrapur. It is stated in the F.I.R. that, that time appellant and mother in law of deceased did not allow her to enter into the house unless she gave in writing. Subsequently, again the deceased was brought to Khamgaon and she stayed at Khamgaon for 8 days. Thereafter again first informant (PW1) and deceased came to her matrimonial house, that time a panchayat was called. The respectable persons from the community in the said panchayat ruled that deceased should reside separately from her mother in law. Subsequently, again the deceased was brought to Khamgaon and she stayed at Khamgaon for 8 days. Thereafter again first informant (PW1) and deceased came to her matrimonial house, that time a panchayat was called. The respectable persons from the community in the said panchayat ruled that deceased should reside separately from her mother in law. Accordingly, appellant and deceased started residing separately though in the same house. It is further stated in the F.I.R. that in spite of living separately harassment continued and therefore one Chandrakant Adwani, a member of Sindhi Panchayat called first informant (PW1) and his father to attend panchayat at Chandrapur. Hence, on 16/4/1996, at Chandrapur panchayat took place in the night hours. After panchayat was over first informant and his father went to lodge for night stay, however in the night one person informed them to accompany to the house of appellant and when they reached there they noticed smoke was emitting from the upper floor and on opening a door he noticed the dead body of his sister. 4. Mohd. Hanif (PW9) noticed that since the report was disclosing commission of cognizable offence, he registered the offence vide Crime No.107/1996, for the offence punishable under Sections 498A and 306 of the Indian Penal Code against the appellant and his mother Laxmibai Taneja. The printed F.I.R. is at Exh.53. The investigating officer (PW9) thereafter made a visit to the spot of occurrence and spot panchnama (Exh.26) was drawn. In the meanwhile, inquest was also done on the dead body by drawing inquest panchnama (Exh.28). Dead body was also sent to post mortem. Mohd. Hanif (PW9) also seized the articles found on the spot and he recorded statements of witnesses. Thereafter, he handed over investigation to Kereubhai Dattatraya Kolhe (PW7). On being entrusted with the investigation, Kerubhai (PW7) recorded seizure panchnama (Exh.44) under which he seized one audio cassette and two stamp papers (Exhs. 33 and 34). A stamp dated 26/10/1995 (Exh.33) which shows that it was in a nature of the agreement executed by deceased and also a kabuliyatnama (Exh.34). After conducting other usual investigation he filed charge-sheet before the Court of law. Learned Magistrate after filing of final report under Section 173 of Cr.P.C. before him noticed that the offence is exclusively triable by the Court of Session therefore, he passed committal order. 5. After conducting other usual investigation he filed charge-sheet before the Court of law. Learned Magistrate after filing of final report under Section 173 of Cr.P.C. before him noticed that the offence is exclusively triable by the Court of Session therefore, he passed committal order. 5. After committal order was passed, case landed in the Court of Session and it was registered as S.T. No. 163/1996. 6. A charge was framed against appellant and his mother Laxmibai for the offence punishable under Sections 498A and 306 of the Indian Penal Code. Both of them abjured their guilt and claim for their trial. 7. During the pendency of the trial and even prior to the commencement of the evidence of the prosecution case Laxmibai died and therefore trial was abated. 8. In order to bring home guilt of the appellant the prosecution examined in all 9 witnesses and also relied on the various documents which were proved during the course of trial. After full fledge trial, the Court below was of the view that prosecution has successfully proved its case against the appellant, therefore appellant was convicted as observed in the opening paragraph of the judgment. Hence, this appeal. 9. I heard Shri Sahil S. Dewani, learned counsel for appellant and Miss T.H. Udeshi, Addl. P.P. for State. With their able assistance I have gone through the entire record and proceedings and notes of evidence. 10. The learned counsel for appellant strenuously urged before this Court that the case of the prosecution is completely destroyed by the version of the prosecution witness Meghraj Dewandas Pabnani (PW5). He submitted that this Meghraj was examined by the prosecution as its witness therefore the prosecution cannot disown him. He further submitted that though during examination in chief itself this prosecution witness (PW5) has supported the version of the defence he was not declared hostile and therefore in view of the law laid down by Hon'ble Apex Court in the case of Mukhtiar Ahmed Ansari vs. State (NCT of Delhi), (2005) 5 SCC 258, in paragraph no.29 in which the Hon'ble Apex Court has ruled that, when the prosecution never declared P.W.1 in the said reported case as hostile witness when his evidence did not support the prosecution and it supported defence accused has every right to rely on his evidence. He also pointed out that the observation of Hon'ble Apex Court in paragraph no.30 of the said reported decision that in absence of declaring witness hostile his evidence is binding on the prosecution. 11. His another limb of submission is that the prosecution has utterly failed to prove the harassment. He invited my attention to the evidence of Gopal (PW1) and Hemchand (PW2) to point out that their evidence is not corroborative with each other on material aspect. He further submitted that the allegations against the appellant are too general in nature and therefore he submitted that the charge for the offence punishable under Section 498-A of the Indian Penal Code is not proved at all. In so far as offence under Section 306 of the Indian Penal Code is concerned, it is his submission that there is no evidence to show that the appellant has abetted the commission of suicide. He invited my attention on the various reported cases of Hon'ble Apex Court as well as this Court to point out that in absence of any positive evidence to prove the ingredients of Section 107 of the Indian Penal Code the appellant can not be held liable for the offence punishable under Section 306 of the Indian Penal Code. He further submitted that letter (Exh.37) dated 25/11/1995 which was considered by the learned Judge of the Court below as dying declaration of deceased Harsha is erroneous and therefore, in his submission the conviction cannot stand to the scrutiny of the law. 12. Per contra, learned A.P.P. strenuously urged before me that the evidence of Gopal (PW1) and Hemchand (PW2) shows that there was no all well for the deceased after initial five months period of her marriage. She further submitted that since the unnatural death occurred within a span of 7 years the presumption under Section 113A of the Indian Evidence Act is squarely applicable and therefore the appellant was rightly convicted. She further pointed out that no lady will execute the documents like Exhs. 33 and 34. Therefore, she submitted that reliance placed by the learned counsel for the appellant on the said documents is misplaced. She also relied on the evidence of Raju Bhagchand Chawla (PW8). She therefore ultimately submitted that appeal be dismissed. 13. She further pointed out that no lady will execute the documents like Exhs. 33 and 34. Therefore, she submitted that reliance placed by the learned counsel for the appellant on the said documents is misplaced. She also relied on the evidence of Raju Bhagchand Chawla (PW8). She therefore ultimately submitted that appeal be dismissed. 13. The factum of death within a span of seven years is not disputed in view of the date of marriage and date of death. The dead body of Harsha was referred for post mortem to Dr. Nitin Manoharrao Kallurwar (PW6). On 17/4/1996 when was attached to Civil Hospital, Chandrapur as medical officer he conducted post mortem over the dead body of Harsha. This autopsy surgeon proved post mortem notes (Exh.47). As per post mortem report (Exh.47) the deceased suffered 100% burn injuries and cause of death was “shock due to superficial to deep burn injuries 100%”. 14. In view of the post mortem report (Exh.47) the prosecution has proved that Harsha met unnatural death due to burning. Merely because a married woman met unnatural death due to burn injuries that by itself is not sufficient to attract the presumption as envisaged under Section 113-A of the Indian Evidence Act. In order to attract the said provision the prosecution is obliged to prove that the deceased was subjected to harassment to such an extent that she is driven to commit suicide. Then and then only the said presumption can be pressed into service. 15. Exh.24 is the oral report lodged by Gopal (PW1). F.I.R. is not a substantive piece of evidence, same can be used either for contradiction or corroboration of the maker of such document. The evidence of Gopal (PW1) shows that his evidence is silent about the harassment after first five months of the marriage between appellant and Harsha. On the contrary, he stated that after first five months there used to be quarrel in between Harsha and appellant. Though Hemchand (PW2), the father of deceased Harsha deposed from the witness box that the appellant used to give cruel treatment both physical as well as mental on this crucial aspect he could not found support from his son Gopal (PW1). Though Hemchand (PW2), the father of deceased Harsha deposed from the witness box that the appellant used to give cruel treatment both physical as well as mental on this crucial aspect he could not found support from his son Gopal (PW1). Though both these prosecution witnesses stated in chorus that they used to receive letters from deceased intimating them about the ill-treatment at the hands of the appellant, for the reason best known to the prosecution those letters were not placed on record. The matrimonial place of deceased Harsha was at Chandrapur and parental house of Harsha was at Khamgaon. According to these prosecution witnesses (PW1 and PW2) the letters were sent by Harsha from Chandrapur and they received the same. Those letters must have been received by them at Khamgaon and thus ordinarily those should be in their custody. It was expected from these two witnesses when they disclose to the Court that they gathered information about the ill-treatment to their near and dear at the hands of appellant through those letters to place the same on record. Those letters in my view will be primary evidence to show that really Harsha at any point of time disclosed to her father (PW2)and her brother (PW1) about the ill-treatment. Not producing those letters on record in my view the Court is required to draw adverse inference against the prosecution to that extent. 16. It is not disputed by these prosecution witnesses that when deceased was omitting blood that time treatment to her was given by the appellant. Their evidence shows that since that omitting continued therefore she was taken to K.E.M. Hospital, Mumbai. As we all know that better medical facilities are available at Mumbai than Chandrapur. Shifting Harsha from Chandrapur to Mumbai for her medical treatment cannot be used against the appellant. The evidence of Gopal (PW1) which is also supported by Hemchand (PW2) shows that after treatment at Mumbai they returned to Khamgaon. Thereafter they were called at Chandrapur and the appellant has called a meeting of panchayat. It is an admitted position that after returning from K.E.M. Hospital, Mumbai till death of Harsha two meetings of panch committee consisting of respectable persons from Sindhi community were called at Chandrapur. Both these meetings were admittedly attended by Gopal (PW1) and Hemchand (PW2). 17. Thereafter they were called at Chandrapur and the appellant has called a meeting of panchayat. It is an admitted position that after returning from K.E.M. Hospital, Mumbai till death of Harsha two meetings of panch committee consisting of respectable persons from Sindhi community were called at Chandrapur. Both these meetings were admittedly attended by Gopal (PW1) and Hemchand (PW2). 17. In first meeting it was decided that the couple should reside separately from the mother of appellant. In fact, the said aspect is duly pointed out to the Court by Meghraj (PW5). His version shows that in the first meeting there were no accusations against the present appellant. What was stated during that meeting by the deceased was against mother in law of the deceased and therefore in the said meeting it was decided that the appellant should reside separately alongwith his wife (deceased Harsha) from his mother Laxmibai. It is also not in dispute that the verdict of the said panch committee was accepted by the appellant and the appellant started residing separately from his mother with his wife though in the same house. 18. After lapse of three months second meeting was called and that was dated 16/4/1996. This meeting was also attended by Gopal (PW1) brother and Hemchand (PW2) father of deceased Harsha and Meghraj (PW5). It is established on record that this Meghraj (PW5) is not related to the appellant. He belongs to Sindhi community to which appellant and deceased belong. His house is situated about 400 houses away from the house of the appellant. His evidence shows that when first meeting was held in that meeting nobody from the complainant's side raised any finger against the appellant that he has caused ill-treatment or harassment of any nature. Blame was put on deceased accused Laxmibai. Had really the appellant was also responsible for causing any type of ill-treatment to the deceased then the brother and father of deceased would not have missed this particular aspect in bringing to the notice of the panchayat. Further evidence of Gopal (PW1) shows that appellant was not responsible for any ill-treatment. The evidence of Meghraj (PW5) shows that document (Exh.33) was executed by Harsha (deceased), her father Hemchand (PW2), Gopal (PW1), her maternal uncle and brother in law. His evidence shows that while executing this document (Exh.33) these persons were not compelled to write the same. Further evidence of Gopal (PW1) shows that appellant was not responsible for any ill-treatment. The evidence of Meghraj (PW5) shows that document (Exh.33) was executed by Harsha (deceased), her father Hemchand (PW2), Gopal (PW1), her maternal uncle and brother in law. His evidence shows that while executing this document (Exh.33) these persons were not compelled to write the same. Another document which is brought on record dated 22/6/1995 is Exh.34. What is important to note that these documents which clearly absolve the appellant are not coming on record from the custody of the accused persons but those were seized during the course of investigation by investigating officer. Careful reading of these two documents (Exhs. 33 and 34) show otherwise. In Exh.33 it is admitted that false allegations were made against the appellant and his family. So also, Exh.34 is on the same line. The incident of burning is early hours of 17/4/1996. Both Gopal (PW1) and Hemchand (PW2) admitted that they participated in meeting of panchayat on 16/4/1996 in night hours. This meeting was also attended by Meghraj (PW5). His evidence shows that in the said meeting Harsha told the panchayat members that she was harassed. It would be useful to reproduce the version of Meghraj as to what happened in the said meeting. “In that meeting Harsha was saying that these persons were harassing her. According to him these persons means mother in law of Harsha” Thus, even in the second meeting nothing was attributed against the present appellant. Every thing was attributed against mother in law. Though Meghraj (PW5) has stated aforesaid he was not declared hostile by the prosecution. He is a prosecution witness, he was not supporting the prosecution, it was open for the prosecutor to declare him “hostile”. Therefore, in my view, learned counsel for appellant has rightly relied on law laid down by Hon'ble Apex Court in the reported case Mukhtiar Ahmed Ansari (cited supra). Thus, even in the meeting dated 16/4/1996 there was no iota of accusation against the present appellant that he caused any harassment. On the contrary, evidence of Meghraj (PW5) further reveals that appellant played a cassette on cassette player which was also seized during the investigation by the investigating officer under seizure memo (Exh.44) and after hearing the said cassette Gopal (PW1) and Hemchand (PW2) told deceased Harsha that she proved them false. On the contrary, evidence of Meghraj (PW5) further reveals that appellant played a cassette on cassette player which was also seized during the investigation by the investigating officer under seizure memo (Exh.44) and after hearing the said cassette Gopal (PW1) and Hemchand (PW2) told deceased Harsha that she proved them false. It would be useful to reproduce the relevant portion of evidence of Meghraj (PW5):- “It is true that in the meeting held on the day of incident after cassette was played, the father of Harsha says that she proved them false and defame them in the society”. His evidence further reads as under: “He has no wish to see the face of Harsha, thereafter Harsha started weeping , thereafter all the members and father and brother of Harsha left meeting.” 19. According to the prosecution this particular meeting was finished at about 11.30 p.m. and the incident has occurred at 2.30 a.m. of 17/4/1996. Thus, it is quite possible that deceased Harsha must have felt disgusted due to scolding of her own father and must have taken the extreme step in her life. 20. The learned Court below in my view has incorrectly placed reliance upon Exh.37. Exh.37 is written on 25/11/1995. After letter (Exh.37) dated 25/11/1995 there were two meetings. Thus, letter (Exh.37) was not written by deceased in expectation of her death therefore the said cannot be considered as dying declaration as considered by learned trial Court. 21. The evidence of Raju Bhagchand Chawla (PW8) on which learned A.P.P. heavily relied, in my view is not well founded in view of the fact that his evidence is found to be improved version. Therefore, this Court is not giving any importance to the improved version of the said witness Raju. 22. Re-appreciation of the entire prosecution case according to this Court shows that there were no allegations that this appellant made any demand from deceased. Deceased Harsha was not subject to cruelty for any such demand from the present appellant. Further in my view, there is no evidence available on record by which it can be said that the appellant is guilty of committing that type of harassment to deceased which drives her to commit suicide. Therefore, in my view, the charge under Section 498-A of the Indian Penal Code is not at all proved against the appellant. Further in my view, there is no evidence available on record by which it can be said that the appellant is guilty of committing that type of harassment to deceased which drives her to commit suicide. Therefore, in my view, the charge under Section 498-A of the Indian Penal Code is not at all proved against the appellant. In that view of the matter, presumption under Section 113-A of the Indian Evidence Act is not available to the prosecution. 23. As observed above, in a meeting dated 16/4/1996 which lasted till 11.30 p.m. cassette was played and after hearing the cassette father Hemchand (PW2) scolded deceased Harsha and declared that he will not see her face and thereafter immediately she committed suicide. Therefore, in my view, it cannot be held that appellant abetted deceased to commit suicide. The re-appreciation of the evidence of the prosecution case leads me to pass the following order. ORDER (I) Appeal is allowed. (II) The judgment and order of conviction passed by learned Additional Sessions Judge, Chandrapur dated 16/5/2001 in S.T. No. 163/1996 is hereby quashed and set aside. (III) Appellant is acquitted of the offence punishable Sections 498-A and 306 of the Indian Penal Code. (IV) His bail bonds stand cancelled.